Federal Disability Retirement Laws, Medical Conditions, and the Intersecting Complications with OWCP, Social Security and FERS & CSRS

— The story is told of the fawn that came upon its own reflection in the lake, and stared ceaselessly with fascination into the mysterious parallel universe which confronted it. It could not comprehend the beauty of this creature staring back at her, with the serenity of the vast pasture of blue and white sparkling in the background. As nightfall came, the herd of deer moved on to safe havens within the forest; this particular fawn, fascinated by the complexity inherent in this untouchable universe, mesmerized by its unknowability, waited in frozen suspense – only to be found the next morning, a rotting, half-eaten carcass fed upon by morning vultures.

— From Fables Old and New


It is indeed a complex world. The multiple issues surrounding Federal Disability Retirement Laws, the Civil Service Retirement System (CSRS), the Federal Employees Retirement System (FERS), the intersection between such benefits received under Federal Disability Retirement and the choices to be made with benefits potentially received from the Office of Workers Compensation Programs (OWCP), the difference between Temporary Total Disability benefits and a Scheduled Award, and further compounded by Social Security Disability Insurance (SSDI) payments; and add to all of this the aggressive implementation of the National Reassessment Program initiated by the U.S. Postal Service and — have you paused, yet, to take a breath?

I receive telephone calls weekly by Federal and Postal employees who are scared, confused, concerned and puzzled by the maze of information, the conflicting (or apparently conflicting) nature of the vast amount of information “out there” in the world of the Internet. The Internet is a wonderful arena of information; information, properly understood and verified for accuracy, can lead to proper choices being made. Too much information, on the other hand, can lead one to confusion and an inability to make the “right” choices. Extrapolating from this vast universe of information, this Article is meant to provide some meaningful guidance for the Federal and Postal employee considering filing for Federal Disability Retirement benefits under CSRS or FERS.

In order to clarify some of the maze of confusion, the following will attempt to somewhat systematically categorize the cornucopia of information out there. Like the fawn in the fable, it is important to resist being frozen by the vastness of the information “out there”, and to simplify the information into compartments of understandable portions:

1. If it is merely a matter of money – i.e., the highest income, without regard to other issues – and the Federal or Postal employee suffers a partial or total disability as a result of an injury incurred at work, then the Federal Employee’s Compensation Act (FECA), (otherwise known as “Federal Workers Compensation”, or OWCP or Department of Labor/OWCP) is the path to follow. However, you must understand that FECA is not a retirement system. This concept is an important one to ponder and follow to its logical conclusion. Because it is not a retirement system, it is instead a system in which an injured Federal or Postal employee is compensated for, during the time of disability, with a view towards returning the Federal or Postal employee back to work. As such, as part of its “program”, benefits consist of cash compensation equaling two-thirds of lost earning capacity if the Federal or Postal Worker has no dependents, or three-fourths of lost earning capacity if the worker has dependents. Thus, a Federal or Postal Worker with a dependent would be receiving 75% of one’s gross salary, and that is indeed an attractive benefit. On top of it all, FECA benefits are not subject to income taxes. Again, this is a good benefit if it is merely a matter of money and, I would add, if the medical condition & injury appears to be of a temporary nature.

2. FECA (OWCP/Federal Workers Compensation) covers Federal and Postal Employees immediately upon employment. It does not have the legal criteria, as is the case under FERS & CSRS Disability Retirement, of meeting minimum eligibility requirements of a certain number of years of Federal Service (for CSRS, 5 years – which, if one pauses and thinks about it, anyone who is under CSRS should already meet that requirement; for FERS, a minimum of 18 months of Federal Service). Thus, for the Federal or Postal employee who walks into his Federal Office Building on the first (or 10 thousandth) day of work, slips and breaks a leg, FECA is probably a good Federal benefit to file for. But FECA does not just pay cash compensation – it also provides for payment of medical expenses related to the work-related illness or injury, as well as “vocational rehabilitation assistance” and “payment for attendant care services”. These other “benefits” are where the problems arise; for, anyone who has been under the thumb of FECA is well-aware of the multiple and oppressive problems: From getting approval for a diagnostic test or surgery; to having the Vocational Rehab Nurse sitting in on the doctor-patient appointment; to sending the Federal or Postal employee to a Second-opinion doctor (or a “referee” Third opinion doctor) who miraculously declares that there is nothing wrong with the employee, and he or she may “return to full duty”.

3. FERS and CSRS Disability Retirement benefits have the overall advantage for any Federal or Postal Employee who has a minimum of 18 months of Federal Service (for FERS employees) or 5 years (for CSRS employees), who realize that the medical disability that one has, is impacting the ability to perform one or more of the essential elements of one’s job; that the medical condition will last for a minimum of 12 months; and most importantly, that the future requires that one thinks not only about the present financial compensation, but about one’s future employment, future potential earnings, and future potential benefits. Thus, FECA payments should normally be looked at as a temporary benefit for a limited duration of time, in order to medically recover to go back to work. That is certainly how OWCP views it. Of course, if you are receiving FECA payments, you may also apply for Federal Disability Retirement benefits under FERS & CSRS, and then elect to stay on OWCP, and keep the approved FERS or CSRS Disability Retirement benefits “in limbo”; and, technically, one may switch back and forth between the two – although, as a practical matter, the headaches inherent in attempting to do so are more prohibitive than the regulations would make you think.

4. Remember that FERS and CSRS Disability Retirement benefits are just that – they are retirement benefits. Just as there are logical consequences for staying under a non-retirement benefit such as FECA (such as being compelled to undergo vocational rehabilitation in order to place you in a job — any job — in order to get you “back to work”; or being sent to a Second or Third Opinion doctor for determination of your medical condition), there are logical advantages to being medically “retired” under OPM Disability Retirement. Such logical advantages include: being able to work in some other capacity and earning up to 80% of what your former Federal or Postal position currently pays; receiving Cost of Living Adjustments after the first 12 months; not being subjected to the onerous FECA rules and regulations; having your years on Federal Disability Retirement count towards your total number of years of Federal Service, which is important when your Federal Disability Retirement benefit gets recalculated as “regular retirement” when you turn age 62; being able to live in retirement, yet to pursue a second career; and other benefits. Of course, under FERS, the Federal or Postal Employee who files for Federal Disability Retirement benefits must also file for Social Security Disability benefits, also. This, because the Federal Government wants to determine whether you qualify not only as an individual medically disabled from your particular Federal or Postal job, but further, from any gainful employment at all. If it is found that you qualify under SSDI as well as under FERS Disability Retirement, then there is a coordinating offset of benefits – 100% offset in the first year, and 60% offset every year thereafter, until age 62.

5. Do you actually want to get SSDI, as well as FERS Disability Retirement benefits? Generally speaking, this question is normally a moot point, because most people who qualify for Federal Disability Retirement benefits under FERS do not concurrently qualify for Social Security Disability benefits (SSDI). This is because SSDI has a “higher legal standard” – one of “total disability” from gainful employment, as opposed to being disabled from being able to perform one or more of the essential elements of one’s Federal or Postal job. Here are the three essential rules (in my view) concerning SSDI: First, you need to get a receipt showing you filed for SSDI at or before the time of approval of the Federal Disability Retirement application by the Office of Personnel Management; Second, if the SSDI application is denied, it will not impact your FERS Federal Disability Retirement application; Third, if your SSDI is approved, you need to inform the Office of Personnel Management as soon as possible, for two reasons: One, the SSDI approval can legally help you get your FERS Disability Retirement application approved, and Two, because there is an offset of payments, OPM needs to be informed of the approval.

The above compartments of information comprise only a miniscule fraction of the greater, macro-aggregate of information “out there”. For instance, I have not even touched upon the issue of SSDI ceilings of earned income; of what happens when an individual reaches “Substantial Gainful Activity” (SGA); of the advantage of filing for a Scheduled Award while switching over to OPM Federal Disability Retirement benefits (because a Scheduled Award can be received from FECA concurrently with OPM Disability Retirement benefits); and further, the entire impact of the National Reassessment Program (NRP) implemented by the U.S. Postal Service to essentially throw everyone who is not “fully productive” in his or her craft back onto OWCP roles, and whether or not OWCP will automatically respond by reinstituting compensatory benefits (not very likely to be “automatic”), and what this means for the Postal employee who should certainly consider filing for Federal Disability Retirement benefits under FERS; or the Federal Employee who works for the FAA and loses his or her medical certification – does this automatically insure that one is eligible for Federal Disability Retirement benefits (answer: No it does not); or the vast and multitudinous issues that surround the universe of medical conditions, the Federal or Postal Employee, FECA, FERS & CSRS.

The world is indeed a complex place, with complex issues and a vast universe of information. The key to all of this is to resist acting like the fawn in the fable – do not get mesmerized by the vast complexity of it all; instead, wade through the information, and consider consulting an attorney who is knowledgeable about the legal issues which impact your life.

For more information, contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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